Amicus Curiae Brief — Peter Van Dermark, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefSep 22, 2023

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No. 23-178

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------PETER VAN DERMARK,

Petitioner,

DENIS MCDONOUGH,

Secretary of Veterans Affairs,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

---------------------------------♦--------------------------------BRIEF OF VETERANS’ ADVOCACY LAW CLINIC AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------KRISTINE A. HUSKEY

Counsel of Record

VETERANS’ ADVOCACY LAW CLINIC

THE UNIVERSITY OF ARIZONA

JAMES E. ROGERS COLLEGE OF LAW

1145 N. Mountain Ave.

Tucson, AZ 85719

(520) 626-6095

khuskey@arizona.edu

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

SUMMARY OF ARGUMENT ..............................

ARGUMENT ........................................................

Veterans who go abroad, even temporarily,

will risk financial stress if they experience

a medical emergency .................................

II.

Veterans will lose educational opportunities that are available to nonveteran

students, impairing their transition to civilian life .................................................... 12

III.

Veterans are at a higher risk of needing

emergency medical care compared to nonveterans ..................................................... 18

CONCLUSION..................................................... 21

TABLE OF AUTHORITIES

Page

STATUTES

38 U.S.C. § 1724 .................................................. 2, 3, 19

38 U.S.C. § 1725 .................................................. 2, 3, 19

38 U.S.C. § 1728 .................................................. 2, 3, 19

Pub. L. No. 116-315, 134 Stat. 4967, § 2001 (codified as amended in 38 U.S.C. § 3317(a)) ................16

OTHER AUTHORITIES

Adam Grucela, Business Travel: 90+ Statistics,

Facts, and Trends [2023], PASSPORT-PHOTO.

ONLINE (June 12, 2023), https://passport-photo.

online/blog/business-travel-statistics/#gref ...........10

Ariz. State Univ., Admissions—Veterans,

https://admission.asu.edu/apply/veterans/ (last

visited Sept. 14, 2023) .............................................13

Bryan Lett, Expanded presumptive disability

benefits for Vietnam Veterans, VA NEWS (Mar.

29, 2023), https://news.va.gov/117663/expandedpresumptive-disability-vietnam/ ............................20

Charlotte West, Helping Veteran Students

Study Abroad (2016), https://www.nafsa.org/

professional-resources/publications/helpingmilitary-veterans-study-abroad#main-content ........14

Chris Gilligan, Who Are America’s Veterans, U.S.

NEWS (Nov. 11, 2022), https://www.usnews.com/

news/best-states/articles/2022-11-11/who-areamericas-veterans ........................................... 5, 6, 18

iii

TABLE OF AUTHORITIES—Continued

Page

Christina Ralph, VA Denies Healthcare to Some

Overseas Veterans, Syracuse University Impunity Watch (Aug. 19, 2023), https://impunitywatch.

com/va-denies-healthcare-to-some-overseasveterans/ .................................................... 6, 8, 11, 12

Christy Richardson & Judith Waldrop, Veterans:

2000, U.S. CENSUS BUREAU (May 2003), https://

usa.ipums.org/usa/resources/voliii/pubdocs/

2000/c2kbr-22.pdf ......................................................6

Clearance Jobs, OCONUS, https://news.clearance

jobs.com/category/oconus/ (last visited Sep.

18, 2023) ....................................................................9

Craig Whitlock & Nate Jones, Key Finding from

the Post’s Series on Veterans’ Lucrative Foreign

Jobs, THE WASHINGTON POST (Oct. 18, 2022),

https://www.washingtonpost.com/investigations/

interactive/2022/veterans-foreign-jobs-foiatakeaways/ (updated Dec. 5, 2022, 6:39 AM)............9

Crystal Kupper, Overseas expat: Many military

families choose to live abroad permanently,

MIL. FAMILIES MAG. (Mar. 3, 2023), https://military

families.com/military-travel/overseas-expatmany-military-families-choose-to-live-abroadpermanently/ .............................................................7

DarrasLaw, Why are veteran disability claims

delayed and denied, https://www.longterm

disabilitylawyer.com/2016/11/why-are-veterandisability-claims-delayed-and-denied/ (last

visited Sep. 18, 2023) ..............................................19

TABLE OF AUTHORITIES—Continued

Page

David Abbott, Arizona veterans struggle to get

access to health care as backlogs grow. Can it

be fixed?, AZ MIRROR (Nov. 5, 2021), https://

www.azmirror.com/2021/11/05/arizona-veteransstruggle-to-get-access-to-health-care-as-back

logs-grow-can-it-be-fixed/ ........................................19

Feds Hire Vets, Agency Directory, https://www.feds

hirevets.gov/job-seekers/veteran-employmentprogram-offices-directory/ (last visited Sept.

18, 2023) ....................................................................4

Housing Assistance Council, Supporting Veterans in Arizona, https://veteransdata.info/states/

2040000/ARIZONA.pdf (last visited Sept. 18,

2023) ..........................................................................5

Jennifer Haley & Genevieve M. Kenney, Uninsured Veterans and Family Members: Who Are

They and Where Do They Live?, URBAN INSTITUTE (May 2012), https://www.urban.org/sites/

default/files/publication/25446/412577-UninsuredVeterans-and-Family-Members-Who-Are-Theyand-Where-Do-They-Live-.PDF ..............................20

Jie Zong & Jeanne Batalova, Immigrant Veterans in the United States, MIGRANT POL’Y INST.

(May 16, 2019), https://www.migrationpolicy.

org/article/immigrant-veterans-united-states

(estimating that 530,000 veterans are foreignborn) ................................................................ 8, 9, 12

TABLE OF AUTHORITIES—Continued

Page

Jose A. Betancourt et al., Exploring Health Outcomes for U.S. Veterans Compared to NonVeterans from 2003 to 2019, 9 HEALTHCARE

604 (2021) .................................................... 3, 4, 5, 18

Kristine A. Huskey, Justice for Veterans—Does

Theory Matter?, 59 ARIZ. L. REV. 697 (Winter

2017) ..........................................................................1

Numbeo, Costs of Living Comparison Between

Mexico City and Phoenix, AZ, https://www.

numbeo.com/cost-of-living/compare_cities.jsp

?country1=Mexico&country2=United+States

&city1=Mexico+City&city2=Phoenix%2C+AZ

(last visited Sep. 18, 2023) ........................................6

Poppin’ Smoke, Expat Military Retiree Profile:

Living and Working on Yokota Air Base, Japan,

https://www.poppinsmoke.com/expat-militaryretiree-yokota-japan/ (last updated April 26,

2023) ..........................................................................7

Regis College, Yellow Ribbon Program, https://

www.regiscollege.edu/admission-and-aid/veteransprograms/yellow-ribbon-program ...........................16

Robert T. Russell, Veterans Treatment Court: A

Proactive Approach, 35 NEW ENG. J. ON CRIM.

& CIV. CONFINEMENT 357 (2009) ...............................1

Robin A. Cohen & Peter Boersma, Financial

Burden of Medical Care Among Veterans Aged

25-64, by Health Insurance Coverage: United

States, 2019-2021, 182 NAT’L HEALTH STAT.

REP., 1 (2023) ...........................................................20

TABLE OF AUTHORITIES—Continued

Page

Safiyah Riddle, Record number of Americans

plan on traveling abroad in the next 6 months,

REUTERS (Aug. 29, 2023), https://www.reuters.com/

world/americas/record-number-americans-plantraveling-abroad-next-6-months-2023-08-29/ ...........7

Sean McLaughlin, Rocky Point sees an increase

in Spring Break ’23 travelers, ARIZ.’S FAMILY

(Apr. 21, 2023), https://www.azfamily.com/2023/

04/22/rocky-point-sees-an-increase-spring-break23-travelers/ ..............................................................7

Statista, Number of United States residents

travelling overseas from 2002 to 2021, https://

www.statista.com/statistics/214774/number-ofoutbound-tourists-from-the-us/ (last visited

Sep. 18, 2023) ............................................................7

Tamara M. Schult et al., The Health Status of

Veteran Employees Compared to Civilian Employees in Veterans Health Administration,

184 MIL. MED. 218 (2019) .........................................3

The Univ. of Ariz., Veterans Education & Transition Services, https://vets.arizona.edu/milcampus

(last visited Sept. 14, 2023).....................................13

U.S. Census Bureau, Census Bureau Releases

New Report on Veterans (June 2, 2020), https://

www.census.gov/newsroom/press-releases/2020/

veterans-report.html .................................................6

U.S. Citizenship and Immigr. Servs., Military

Naturalization Statistics, https://www.uscis.gov/

military/military-naturalization-statistics (last

visited Sep. 18, 2023) ................................................8

vii

TABLE OF AUTHORITIES—Continued

Page

U.S. Citizenship and Immigr. Servs., Naturalization Through Military Service, https://www.

uscis.gov/military/naturalization-throughmilitary-service (last visited Sep. 18, 2023) .............8

U.S. Dep’t of Lab., Transition Assistance Program,

https://www.dol.gov/agencies/vets/programs/

tap (last visited Sept. 18, 2023) ..............................11

U.S. Dep’t of Veterans Aff., About the Department, https://department.va.gov/about/ (last

visited Sept. 20, 2023) .............................................21

U.S. Dep’t of Veterans Aff., Annual Benefits Report Education FY-2019, https://www.benefits.

va.gov/REPORTS/abr/docs/2019-education.pdf

(last visited Sept. 3, 2023).......................................14

U.S. Dep’t of Veteran’s Aff., Annual Benefits Report Education FY-2022, https://www.benefits.

va.gov/REPORTS/abr/docs/2022-education.pdf

(last visited Sept. 3, 2023)........................... 13, 14, 15

U.S. Dep’t of Veterans Aff., Education and Training (2023), https://benefits.va.gov/gibill/foreign_

schools.asp ........................................................... 4, 14

U.S. Dep’t of Veterans Aff., Find a Yellow Ribbon

School, https://www.va.gov/education/yellowribbon-participating-schools (last visited Sept.

3, 2023) ....................................................................16

U.S. Dep’t of Veterans Aff., GI Bill Comparison

Tool, https://www.benefits.va.gov/GIBILL/docs/

job_aids/ComparisonToolData.xlsx (last visited Sept. 3, 2023).............................................. 15, 16

viii

TABLE OF AUTHORITIES—Continued

Page

U.S. Dep’t of Veterans Aff., Outreach, Transition and Economic Development, https://www.

benefits.va.gov/transition/tap.asp (last visited

Sep. 18, 2023) ..........................................................10

U.S. Dep’t of Veterans Aff., Veterans Benefits Administration Reports, https://www.benefits.va.

gov/reports/detailed_claims_data.asp ....................19

U.S. Dep’t of Veterans Aff., Veterans Employment Toolkit, https://www.va.gov/vetsinwork

place/docs/em_challengesreadjust.asp (updated

Aug. 6, 2021) ............................................................10

U.S. Dep’t of Veterans Aff. Yellow Ribbon Program (2023), https://www.va.gov/education/

about-gi-bill-benefits/post-9-11/yellow-ribbonprogram/ ..................................................................15

U.S. Dep’t of Veterans Aff. Yellow Ribbon Program Benefits (2023), https://www.benefits.va.

gov/gibill/yellow_ribbon/yellow_ribbon_info_

schools.asp ...............................................................16

U.S. Gov’t Accountability Off., Helping Servicemembers Transition Back to Civilian Life,

https://www.gao.gov/helping-servicememberstransition-back-to-civilian-life (last visited

Sept. 18, 2023) .........................................................10

U.S. Gov’t Accountability Off., Military and

Veteran Support: Performance Goals Could

Strengthen Programs that Help Servicemembers Obtain Civilian Employment (July 9, 2020),

https://www.gao.gov/products/gao-20-416..................11

TABLE OF AUTHORITIES—Continued

Page

U.S. Gov’t Accountability Off., VA Disability

Benefits: VA Should Continue to Improve Access to Quality Disability Medical Exams for

Veterans Living Abroad (Sept. 21, 2020),

https://www.gao.gov/products/gao-20-620 ..............18

Valorie Rice, An Economic Snapshot of Arizona’s

Veterans, UA ARIZ.’S ECON. (Dec. 2, 2021),

https://www.azeconomy.org/2021/12/economy/

an-economic-snapshot-of-arizonas-veterans/ .........6

William D. Chalmers, The Great American Passport Myth: Why Just 3.5% of Us Travel Overseas, HUFFPOST, https://www.huffpost.com/entry/

the-great-american-passpo_b_1920287 (updated

Nov. 29, 2012) ..........................................................10

INTEREST OF AMICUS CURIAE1

Since 2012, the Veterans’ Advocacy Law Clinic

(“Vet Clinic”) at the University of Arizona James E.

Rogers College of Law has provided pro bono legal assistance to over 2,000 military veterans and service

members by helping them through a range of legal and

quasi-legal issues. The Vet Clinic represents veterans

and service members in veterans treatment court,2

provides intake and referral services, represents them

on disability benefits compensation cases, helps them

upgrade their discharge status or correct their military

record, and engages in community outreach to raise

awareness of the legal needs of veterans and service

members. The Vet Clinic focuses on removing legal barriers hindering the transition from military service to

Under Supreme Court Rule 37.2(a), amicus curiae notified

counsel of record of its intent to file this brief at least 10 days prior

to the due date for the brief. Pursuant to Supreme Court Rule

37.6, amicus curiae states that no counsel for any party authored

this brief in whole or in part and no entity or person, aside from

amicus curiae, its members, or its counsel, made any monetary

contribution intended to fund the preparation or submission of

this brief.

Veterans treatment courts (VTCs) recognize that military

service and exposure to combat may have a negative impact on

soldiers, not only causing profound challenges to assimilating

back into civilian life, but also resulting in criminal conduct. Kristine A. Huskey, Justice for Veterans—Does Theory Matter?, 59

ARIZ. L. REV. 697 (Winter 2017). A VTC, like a drug treatment or

mental health court, is a problem-solving court that favors treatment over incarceration because an underlying condition may

have led to the misconduct. Robert T. Russell, Veterans Treatment

Court: A Proactive Approach, 35 NEW ENG. J. ON CRIM. & CIV.

CONFINEMENT 357, 364 (2009).

civilian life. This multidisciplinary legal clinic often

requires working with veterans who have physical disabilities, Post-Traumatic Stress, Traumatic Brain Injury, or other mental health conditions that are a direct

result of or related to their military service.

This case focuses on sections 1724, 1725, and 1728

in Title 38 of the U.S. Code, which concern reimbursing veterans for qualified emergency medical expenses

that were incurred abroad.3 The Federal Circuit’s opinion focused on section 1724 and did not adequately consider the relevancy of sections 1725 and 1728. These

two statutes apply in this case and require reimbursement in several circumstances for emergency medical

treatment, with no distinction between veterans in

the United States and abroad. Requiring out-of-pocket

payment for emergency medical expenses despite their

qualification for reimbursement under sections 1725

and 1728, hinders veterans’ opportunities as they

transition to civilian life. This ruling is disconnected

from the modern veteran experience that comes with

an increased possibility of living, traveling, working, or

studying abroad.

Because the Federal Circuit’s decision severely

harms veteran opportunities, creates barriers for veterans in their transition to civilian life, and is antithetical to this Court’s long recognized pro-veteran canon

of interpretation, the Veterans’ Advocacy Law Clinic at

the University of Arizona James E. Rogers College of

Law has a strong interest in this Court reviewing the

38 U.S.C. §§ 1724, 1725, 1728.

Federal Circuit’s decision and clarifying that sections

1725 and 1728 govern with respect to veterans who

have received emergency medical care abroad.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

There is a cruel irony that many veterans who

served honorably in deployments overseas may later

not get reimbursed for emergency medical care received outside this country.

The Federal Circuit Court limited reimbursement

for medical expenses based on 38 U.S.C. section 1724

despite sections 1725 and 1728. Its decision creates a

significant barrier for veterans readapting to civilian

life as well as those facing the realities of aging. This

erroneous decision effectively negates financial support for an incredible number of veterans. Such a result is especially concerning for this population, which

has a higher risk of poor health outcomes and future

need for emergency care.4

First, this decision hinders veteran opportunities

in their transition to civilian life. For a myriad of reasons, many may choose to pursue civilian life abroad.

This chance is bolstered by several overseas jobs

Jose A. Betancourt et al., Exploring Health Outcomes for

U.S. Veterans Compared to Non-Veterans from 2003 to 2019, 9

HEALTHCARE 604 (2021); see also Tamara M. Schult et al., The

Health Status of Veteran Employees Compared to Civilian Employees in Veterans Health Administration, 184 MIL. MED. 218

(2019).

particularly suited for post-military service, including

opportunities promoted by the U.S. Department of

Veterans Affairs (VA).5 However, pursuing any opportunity abroad will always be clouded with the risks of

unsurmountable emergency medical expenses the VA

will not cover. Limiting earned medical benefits inhibits veterans’ ability to choose and thus, inhibits their

success.

Second, this decision negatively impacts a veteran’s pursuit of education after military service. Although the VA lauds opportunities to study at foreign

institutions of education using the GI Bill,6 this opportunity is marred with the potential of a medical emergency a veteran may not be able to pay for on their

own. Instead of choosing between educational opportunities, veterans instead will face decisions between

risky opportunities and medical safety or financial security.

Third, this decision disadvantages veterans significantly compared to the general public because of their

higher risk of poor health outcomes.7 As is evident with

our Vietnam veterans, our once young brave soldiers

cannot escape the aging process and the health crises

that inevitably follow. These health problems are often

created by, aggravated by, or related to their military

See Feds Hire Vets, Agency Directory, https://www.fedshire

vets.gov/job-seekers/veteran-employment-program-offices-directory/

(last visited Sept. 18, 2023).

U.S. Dep’t of Veterans Aff., Education and Training, https://

benefits.va.gov/gibill/foreign_schools.asp (last visited Sept. 3, 2023).

Betancourt, supra note 4.

service.8 Although the VA was created to help our men

and women post-military service, the Federal Circuit

decision created a glaring lapse in its care. It denies

reimbursement for medical emergencies to U.S. veterans around the world and forgets them in their aging

years.

In sum, it is imperative for this Court to grant the

petition and reverse the Federal Circuit’s decision in

order to support veterans and allow them the chance

to succeed unimpeded.

---------------------------------♦---------------------------------

ARGUMENT

Veterans who go abroad, even temporarily,

will risk financial stress if they experience

a medical emergency.

There are roughly 16.5 million U.S. military veterans living in the United States, making up 6.4% of

the country’s adult population.9 In Arizona, there are

over 500,000 veterans, making up 8.7% of the state’s

adult population.10 Despite this population in the U.S.

Id.

Chris Gilligan, Who Are America’s Veterans, U.S. NEWS

(Nov. 11, 2022), https://www.usnews.com/news/best-states/articles/

2022-11-11/who-are-americas-veterans.

Hous. Assistance Couns., Supporting Veterans in Arizona,

https://veteransdata.info/states/2040000/ARIZONA.pdf (last visited Sept. 18, 2023).

declining by over a third from 26.4 million in 2000,11

Arizona’s veteran population has remained fairly constant.12 36.9% of Arizona veterans served in the Vietnam era while 21% served in the first Gulf War,

21% served in the Iraq-Afghanistan conflicts, and 21%

served during peacetime after Vietnam.13 Having a

large number of Vietnam and Gulf-War eras veterans

in Arizona explains why more than 50% are 65 years

old or older.14

Many veterans choose to live abroad permanently

in order to have a better quality of life, given the lower

cost of living in many other countries.15 For example,

living in Mexico City in rented housing is roughly half

the cost of renting in Phoenix.16 Further, veterans and

their families who live abroad can see new places, meet

U.S. Census Bureau, Census Bureau Releases New Report

on Veterans (June 2, 2020), https://www.census.gov/newsroom/

press-releases/2020/veterans-report.html.

Christy Richardson & Judith Waldrop, Veterans: 2000,

U.S. C ENSUS B UREAU (May 2003), https://usa.ipums.org/usa/

resources/voliii/pubdocs/2000/c2kbr-22.pdf.

Gilligan, supra note 9.

Valorie Rice, An Economic Snapshot of Arizona’s Veterans,

UA ARIZ.’S ECON. (Dec. 2, 2021), https://www.azeconomy.org/

2021/12/economy/an-economic-snapshot-of-arizonas-veterans/.

Christina Ralph, VA Denies Healthcare to Some Overseas

Veterans, SYRACUSE UNIV. IMPUNITY WATCH (Aug. 19, 2023),

https://impunitywatch.com/va-denies-healthcare-to-some-overseasveterans/.

Numbeo, Costs of Living Comparison Between Mexico City

and Phoenix, AZ, https://www.numbeo.com/cost-of-living/compare_

cities.jsp?country1=Mexico&country2=United+States&city1=

Mexico+City&city2=Phoenix%2C+AZ (last visited Sept. 18, 2023).

new people, and experience different cultures.17 They

may also want to continue living abroad if they enjoyed

the foreign country they were stationed in during their

service.18

The risk of no reimbursement for emergency

treatment can extend beyond permanent overseas residents to any former service men and women who travel

abroad temporarily. In 2021, 18.21 million Americans

traveled abroad, with over 40 million Americans traveling before COVID-19 in 2018 and 2019.19 In 2023, a

record high of more than one in five Americans are

expected to travel abroad.20 Many Arizonans travel

abroad, such as to Mexico’s Puerto Peñasco—aka “Rocky

Point.”21 In 2023, 152,000 Arizonans visited “Arizona’s

Crystal Kupper, Overseas expat: Many military families

choose to live abroad permanently, MIL. FAMILIES MAG. (Mar. 3,

2023), https://militaryfamilies.com/military-travel/overseas-expatmany-military-families-choose-to-live-abroad-permanently/.

Poppin’ Smoke, Expat Military Retiree Profile: Living and

Working on Yokota Air Base, Japan, https://www.poppinsmoke.

com/expat-military-retiree-yokota-japan/ (last updated April 26,

2023).

Statista, Number of United States residents travelling

overseas from 2002 to 2021, https://www.statista.com/statistics/

214774/number-of-outbound-tourists-from-the-us/ (last visited

Sept. 18, 2023).

Safiyah Riddle, Record number of Americans plan on

traveling abroad in the next 6 months, REUTERS (Aug. 29, 2023),

https://www.reuters.com/world/americas/record-number-americansplan-traveling-abroad-next-6-months-2023-08-29/.

Sean McLaughlin, Rocky Point sees an increase in Spring

Break ’23 travelers, ARIZ.’S FAMILY (Apr. 21, 2023), https://www.

azfamily.com/2023/04/22/rocky-point-sees-an-increase-springbreak-23-travelers/.

Beach” in Rocky Point during “spring break,” a 12% increase from 135,000 people in 2022.22

Veterans may also travel overseas for reasons besides vacationing, such as for visiting family and loved

ones. Indeed, the U.S. government incentivizes foreignborn people to enlist by reducing the requirements for

naturalization when foreign-born members serve in

the military for a certain period of time.23 Since 2002,

158,000 members of the military have become naturalized and, just over 33,000 service members were naturalized between 2018 and 2022.24 The government

incentive has produced strong results: over half a million veterans are foreign born.25 It is likely many of

these men and women have loved ones living outside

any state, whom they may wish to visit. Furthermore,

many U.S.-born veterans likely have family that live

outside a state. 1.9 million veterans were born in the

United States to immigrant parents, making roughly

13% of veterans of immigrant origin.26

Ralph, supra note 15.

U.S. Citizenship and Immigr. Servs., Naturalization Through

Military Service, https://www.uscis.gov/military/naturalizationthrough-military-service (last visited Sep. 18, 2023).

U.S. Citizenship and Immigr. Servs., Military Naturalization

Statistics, https://www.uscis.gov/military/military-naturalizationstatistics (last visited Sep. 18, 2023).

Jie Zong & Jeanne Batalova, Immigrant Veterans in the

United States, MIGRANT POL’Y INST. (May 16, 2019), https://www.

migrationpolicy.org/article/immigrant-veterans-united-states (estimating that 530,000 veterans are foreign-born).

Id.

Due to proximity, it is no surprise that many veterans have family ties to Central and South America.

In 2018, among foreign-born veterans, 17% were born

in Mexico and 37% were Hispanic in ethnicity.27 In the

same year, among veterans born in the U.S., roughly

6% were Hispanic or Latino; in Arizona, 12.3% were

Hispanic or Latino.28

Veterans may also travel abroad for temporary

work or travel for their domestic jobs. There are numerous jobs particularly suited for them in countries

all over the world such as in Afghanistan, Kuwait, and

Germany.29 These jobs include working as analysts, intelligence advisors, and counselors.30 Since 2015, over

500 veterans, including former high-ranking officers,

have worked as contractors and consultants for foreign

governments.31 When it comes to travel for domestic

jobs, there are numerous opportunities for veterans to

go abroad just like non-veteran workers. In the civilian

world, the world in which veterans make their living,

approximately twelve million business trips took place

Id.

Clearance Jobs, OCONUS, https://news.clearancejobs.com/

category/oconus/ (last visited Sep. 18, 2023).

See Id.

Craig Whitlock & Nate Jones, Key Finding from the Post’s

Series on Veterans’ Lucrative Foreign Jobs, THE WASHINGTON

POST (Oct. 18, 2022), https://www.washingtonpost.com/investigations/

interactive/2022/veterans-foreign-jobs-foia-takeaways/ (updated

Dec. 5, 2022, 6:39 AM).

overseas in 2009, by over two million travelers.32 Of

the 400 million U.S.-originated business trips annually, 33% of business travel is to Mexico—making it the

leading international business destination for Americans.33

For many veterans, transitioning to civilian life

comes with many challenges such as finding steady

employment, creating structure, and connecting with

the community.34 As a society, it is imperative that

these challenges are minimized by maximizing the opportunities available for veterans to succeed after their

service. Government agencies such as the VA35 and

the Department of Defense emphasize the importance

of helping veterans make the transition to the civilian world through assistance programs.36 There are

thirty-four federal programs that help veterans move

William D. Chalmers, The Great American Passport Myth:

Why Just 3.5% of Us Travel Overseas, HUFFPOST (Nov. 29, 2012),

https://www.huffpost.com/entry/the-great-american-passpo_b_

1920287.

Adam Grucela, Business Travel: 90+ Statistics, Facts, and

Trends [2023], PASSPORT-PHOTO.ONLINE (June 12, 2023), https:/

/passport-photo.online/blog/business-travel-statistics/#gref.

U.S. Dep’t of Veterans Aff., Veterans Employment Toolkit,

https://www.va.gov/vetsinworkplace/docs/em_challengesreadjust.asp

(updated Aug. 6, 2021).

U.S. Dep’t of Veterans Aff. Outreach, Transition and Economic Development, https://www.benefits.va.gov/transition/tap.asp

(last visited Sept. 18, 2023).

U.S. Gov’t Accountability Off., Helping Servicemembers

Transition Back to Civilian Life, https://www.gao.gov/helpingservicemembers-transition-back-to-civilian-life (last visited Sept.

18, 2023).

on to new careers following their military service.37

Such programs include Employment Fundamentals

of Career Transition (EFCT), eLearning, and the

Wounded Warrior and Caregiver Employment Workshop (WWCEW).38 Yet, by denying reimbursement for

emergency medical treatment abroad, the VA counteracts its goal of helping veterans transition to civilian

life. The 77,000 veterans living abroad will obviously

be affected.39 They do not have access to a VA medical

facility or a VA-approved provider, unless they travel

back to the U.S. Traveling back to the U.S., however,

may not be possible given the extent or urgency of the

medical condition.

Veterans who live overseas permanently are not

the only ones impacted. Any veteran who travels

abroad—whether for leisure, family, or work—will also

be affected, as there is always a risk that emergency

care will be required. Arizona veterans are a prime example of who will be affected, given Arizona’s proximity to the U.S.-Mexico border. These veterans may

vacation to places like Rocky Point as thousands of

U.S. Gov’t Accountability Off., Military and Veteran Support: Performance Goals Could Strengthen Programs that Help

Servicemembers Obtain Civilian Employment (July 9, 2020),

https://www.gao.gov/products/gao-20-416.

U.S. Dep’t of Lab., Transition Assistance Program, https://

www.dol.gov/agencies/vets/programs/tap (last visited Sept. 18, 2023).

Ralph, supra note 15.

other Arizonans do during “spring break.”40 Perhaps

instead, they decide to visit family in Mexico, which is

highly likely because there are thousands of Hispanic

veterans having family ties to Mexico.41 For work,

many veterans may have to travel to Mexico for temporary work in jobs like contracting or for business

trips, since Mexico is the most popular destination for

international business travel by American workers.

Regardless of why a veteran is abroad, there will

always be risks of injuries that will require emergency

care, which could financially debilitate them. The last

thing veterans should be concerned about is having to

choose between new opportunities or family abroad

and forgoing such opportunities to ensure physical

safety and financial security. Having this added burden for thousands, if not millions of our former service

members, will only make transitioning to civilian life

more difficult. Society can do better for its veterans in

ensuring adequate care by reimbursing them for emergency medical expenses abroad.

II.

Veterans will lose educational opportunities that are available to non-veteran

students, impairing their transition to civilian life.

Arizona has the thirteenth largest population of

veterans in the United States. Not only do they retire

here, but many also move to or live in Arizona to attend

Id.

Zong & Batalova, supra note 25.

college and earn a degree to aid their transition into

civilian life. There are over 7,180 military and veteran

students currently enrolled at Arizona State University.42 The University of Arizona, which houses amicus

Vet Clinic, has a rich history of supporting this country’s military, dating back to 1896 when the Army

ROTC was launched at the University to train cavalry

troops.43 During the 2019-2020 academic year, there

were over 1,800 veterans enrolled at the University of

Arizona.44

VA education benefits provide veterans, service

members, reservists, and certain family members

“educational resources to supplement missed opportunities due to military service.”45 These services and

benefits assist members of the Armed Forces and veterans with their “readjustment to civilian life.”46 More

veterans have started studying at institutions of

postsecondary education in the last five years due to

the expansion of educational benefits outlined in the

Ariz. State Univ., Admissions – Veterans, https://admission.

asu.edu/apply/veterans/ (last visited Sept. 14, 2023).

The Univ. of Ariz., Veterans Education & Transition Services, https://vets.arizona.edu/milcampus (last visited Sept. 14,

2023).

Id.

U.S. Dep’t of Veteran’s Aff., Annual Benefits Report Education FY-2022, https://www.benefits.va.gov/REPORTS/abr/docs/

2022-education.pdf (last visited Sept. 3, 2023).

Id.

Post-9/11 GI Bill, which went into full effect in 2009.47

They are eligible for education benefits, which include

tuition payments, a housing allowance, and a book

stipend.48 In 2012 more than 900,000 U.S. veterans

used their higher education benefits, an increase from

550,000 in 2009.49 Within the last five fiscal years (FY)

of 2018 to 2022, the number of veterans using their

higher education benefits ranged from a high in a

pre-pandemic year of 909,422 in FY 2019 to slightly

lower within two years of the pandemic in FY 2022 to

834,460.50

The VA allows veterans to use their GI Bill benefits at foreign education institutions.51 In FY 2019,

2,169 used their Post-9/11 GI Bill to attend an international institution.52 In FY 2022, 1,311 used their Post9/11 Bill to attend an international institution.53 This

decrease is likely attributed to the effects of COVID-19

on educational institutions domestic and abroad, as

well as travel restrictions and other challenges. Despite the decrease, in FY 2022, veterans used their

Charlotte West, Helping Veteran Students Study Abroad

(2016), https://www.nafsa.org/professional-resources/publications/

helping-military-veterans-study-abroad#main-content.

Id.

U.S. Dep’t of Veterans Aff., supra note 45.

U.S. Dep’t of Veterans Aff., Education and Training (2023)

https://benefits.va.gov/gibill/foreign_schools.asp.

U.S. Dep’t of Veterans Aff., Annual Benefits Report Education FY-2019, https://www.benefits.va.gov/REPORTS/abr/docs/

2019-education.pdf (last visited Sept. 3, 2023).

U.S. Dep’t of Veterans Aff., supra note 45.

Post-9/11 GI Bill in 39 different countries across the

globe.54 For example in 2022, there were 83 veterans in

Australia, 231 in the United Kingdom, 37 in Mexico,

and 46 in Grenada.55 All over the world they are utilizing their education benefits to live and learn, in ways

that support and complement their transition into civilian life.56

Arizona ranks fourth in the country for the number of veterans using their GI Bill education benefits.57

Fellow Mexican-border states, Texas and California,

rank first and second in the country, respectively.58

Larger states bordering Canada also have substantial

numbers of veterans using their GI bill, with Washington ranking fifteenth and New York ranking tenth.59

The Yellow Ribbon Program allows institutions of

higher learning to enter into a voluntary agreement

with the VA to contribute funds to a veteran’s unmet

education costs that remain after using the GI Bill.60

Id.

U.S. Dep’t of Veterans Aff., GI Bill Comparison Tool,

https://www.benefits.va.gov/GIBILL/docs/job_aids/Comparison

ToolData.xlsx (last visited Sept. 3, 2023).

Id.

Regis College, Yellow Ribbon Program, https://www.regis

college.edu/admission-and-aid/veterans-programs/yellow-ribbonprogram (stating that Yellow ribbon funds may not be used for

unnecessary costs associated with education at domestic institutions, such as study abroad programs or room and board expenses.); see U.S. Dep’t of Veterans Aff., Yellow Ribbon Program

Yellow Ribbon funds are eligible to use at foreign institutions if the institution participates in the program.61

There are currently over 5,000 institutions participating in the Yellow Ribbon program for the 2023-2024

school year, providing hundreds of thousands of dollars for study at foreign and domestic institutions.62

Of the states that border Mexico, California has the

most Yellow Ribbon associated institutions with 559

schools.63 Texas has 188, Arizona has 112, and New

Mexico has 23.64 States that border Canada also have

a significant number of Yellow Ribbon accredited institutions, most notably New York with 304 institutions

and Michigan with 141.65

(2023), https://www.va.gov/education/about-gi-bill-benefits/post-9-11/

yellow-ribbon-program/.

Pub. L. No. 116-315, 134 Stat. 4967, § 2001 (codified as

amended in 38 U.S.C. § 3317(a)) provides clarification on the eligibility requirements of the Yellow Ribbon Program and grants

foreign institutions the option to participate. In accordance with

the law, the participation window extends from June 1st to July

31st, therefore the VA states by “September [it will] update the

2023-24 participation list with Foreign School participants.” See

U.S. Dep’t of Veterans Aff., Yellow Ribbon Program (2023), https://

www.benefits.va.gov/gibill/yellow_ribbon/yellow_ribbon_info_

schools.asp.

U.S. Dep’t of Veterans Aff., supra note 57.

U.S. Dep’t of Veterans Aff., Find a Yellow Ribbon School,

https://www.va.gov/education/yellow-ribbon-participating-schools

(last visited Sept. 3, 2023).

Id.

With a large population of student veterans, Arizona is a hub for service men and women transitioning

into civilian life. Opportunities range from finding a

post-military service job with their degree, social immersion into student and civilian life, and most importantly, the ability to transition into a life as an

engaged civilian. The opportunities provided to these

students should not be lesser than those provided to

non-veteran students. For example, the University of

Arizona is approximately 60 miles from the United

States-Mexico border. Those who are from nearby Sonora, Mexico or another Mexican state, may decide to

use their GI Bill at a Mexican institution. However, if

they are unable to have their emergency medical care

reimbursed, then opportunities to freely choose where

to use their education benefits are diminished, thus

making the transition to civilian life all the more difficult.

As stated above, the VA allows the GI Bill to be

used at foreign schools in addition to domestic schools.

Choosing to study at a foreign school entails living

abroad. Since the VA encourages veterans to use the

benefits of their service at a foreign school, it would be

incongruous for the VA to deny reimbursement for

emergency medical expenses incurred while studying

abroad. The Yellow Ribbon program also extends to institutions beyond the United States, as veterans may

use Yellow Ribbon funding at any foreign institution

that participates in the program. Denying veterans reimbursement for emergency medical care has many

implications; especially for student veterans, who are

using their education benefits to attend an institution

of their choice. Whether their chosen school is within

the United States, possibly in a border state, or an institution abroad, the freedom of choice in their future

is key for service men and women transitioning into

post-military life. Limiting their medical benefits inhibits veterans’ choices in how they live their lives

after service.

III. Veterans are at a higher risk of needing

emergency medical care compared to nonveterans.

Because many veterans suffer from health conditions, they are likely prone to medical situations requiring immediate care.66 Approximately 28,000 of the

77,000 veterans living abroad have disabilities.67 In

2019, there were over 18,000 disability claims from

veterans living abroad, a 14% increase since 2014.68

These men and women may be at a higher than average risk of having a medical emergency regardless

of whether the urgent need is related to a serviceconnected disability.

However, an emergency health situation can

happen to anybody—healthy or not, living overseas

Betancourt, supra note 4.

Gilligan, supra note 9.

U.S. Gov’t Accountability Off., VA Disability Benefits: VA

Should Continue to Improve Access to Quality Disability Medical

Exams for Veterans Living Abroad (Sept. 21, 2020), https://www.

gao.gov/products/gao-20-620.

permanently or temporarily. Therefore, the 16.5 million veterans living in the U.S. are also at risk of uncovered emergency care if they go abroad for work,

personal, or education-related travel. In essence, the

Federal Circuit’s decision punishes any veteran abroad

who experiences an emergency medical condition that

is unrelated to a service-connected disability because

the VA will not reimburse them unless they meet the

limited exception under section 1724(b), despite the

existence of sections 1725 and 1728.

Even if a veteran believes emergency medical

treatment is related to their service-connected disability, it may not be recognized by the VA soon enough to

provide adequate relief. The VA denies up to 75% of initial claims for VA benefits and up to 71% of appeals.69

Furthermore, the average wait time to evaluate a veteran’s disability claim is 277 days, while 40% of veterans who apply wait longer than 4 months to receive an

initial decision from the VA.70 Currently, there is a backlog of roughly 282,220 disability claims awaiting process by the VA.71 Even if the VA or a court eventually

DarrasLaw, Why are veteran disability claims delayed and

denied, https://www.longtermdisabilitylawyer.com/2016/11/whyare-veteran-disability-claims-delayed-and-denied/ (last visited

Sept. 18, 2023).

David Abbott, Arizona veterans struggle to get access to health

care as backlogs grow. Can it be fixed?, AZ MIRROR (Nov. 5, 2021),

https://www.azmirror.com/2021/11/05/arizona-veterans-struggleto-get-access-to-health-care-as-backlogs-grow-can-it-be-fixed/.

U.S. Dep’t of Veterans Aff., Veterans Benefits Administration Reports, https://www.benefits.va.gov/reports/detailed_claims_

data.asp.

grants a veteran their service-connected disability, the

failure to reimburse emergency medical expenses at or

near the time of the event will have already wreaked

financial havoc on those who served and their families.

Further, many service-connected presumptions of disability are recognized by the VA long after veterans

have served, such as in the case of Vietnam veterans

and the recently passed PACT Act.72

Denying reimbursement for emergency medical

treatment abroad brings additional financial struggles

to an already struggling population. Roughly 10% of

veterans in Arizona are uninsured for medical care.73

Veterans between 25 and 64 years of age reported having problems paying medical bills with 8.4% having

to forgo medical care and 38.4% worrying about paying their medical bills if they had an accident or became sick.74 The VA’s failure to reimburse emergency

medical expenses incurred abroad directly contradicts

its goal of helping veterans transition to civilian life.

For those who sacrificed their health and dedicated

Bryan Lett, Expanded presumptive disability benefits for

Vietnam Veterans, VA NEWS (Mar. 29, 2023), https://news.va.

gov/117663/expanded-presumptive-disability-vietnam/.

Jennifer Haley & Genevieve M. Kenney, Uninsured Veterans and Family Members: Who Are They and Where Do They

Live?, URBAN INSTITUTE (May 2012), https://www.urban.org/sites/

default/files/publication/25446/412577-Uninsured-Veterans-andFamily-Members-Who-Are-They-and-Where-Do-They-Live-.PDF.

Robin A. Cohen & Peter Boersma, Financial Burden of

Medical Care Among Veterans Aged 25-64, by Health Insurance

Coverage: United States, 2019-2021, 182 NAT’L HEALTH STAT.

REP., 1 (2023).

their lives for this country, the VA should do everything

it can under the existing statutes to set these heroes

up for success after their service and later in life. The

VA must carry out its mission: “To fulfill President Lincoln’s promise to care for those who have served in our

nation’s military and for their families, caregivers, and

survivors.’’75

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant the petition for a writ of

certiorari and reverse the Federal Circuit’s decision

which creates barriers of uncertainty and financial insecurity for the men and women who sacrificed for the

good and security of our country.

Respectfully submitted,

KRISTINE HUSKEY

Counsel of Record

VETERANS’ ADVOCACY LAW CLINIC

THE UNIVERSITY OF ARIZONA

JAMES E. ROGERS COLLEGE OF LAW

1145 N. Mountain Ave.

Tucson, AZ 85719

(520) 626-6095

khuskey@arizona.edu

Counsel for Amicus Curiae

SEPTEMBER 22, 2023

U.S. Dep’t of Veterans Aff., About the Department, https://

department.va.gov/about/ (last visited Sept. 20, 2023).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.